Senators: Not so fast on Broadcast Treaty

The chairman of the Senate Judiciary Committee and the ranking GOP member have …

For almost two years, the World Intellectual Property Organization (WIPO) has been hard at work drafting a broadcast treaty. Designed originally to limit signal theft from broadcasts, the scope of the treaty has at times narrowed and widened significantly throughout the process of drafting the treaty. The US Senate, which is tasked with the responsibility of approving treaties, has weighed in the Broadcast Treaty, encouraging the US delegation to work towards limiting the scope of the treaty.

In a letter sent to the Register of Copyrights and the director of the US Patent and Trademark Office, Sen. Patrick Leahy (D-VT), the chairman of the Senate Committee on the Judiciary, and Sen. Arlen Specter (R-PA), the ranking Republican member of the Committee expressed their concerns about the scope of the treaty. "The Revised Draft Broadcasting Treaty appears to grant broadcasters extensive new, exclusive rights in their transmissions for a term of at least 20 years, regardless of whether they have a right in the content they are transmitting," read the letter.

The Copyright Register and Director of the USPTO make up the US delegation to the WIPO, and the senators want them to work towards a treaty that is "significantly narrower in scope," one that would provide no more protection than that necessary to protect the signals of broadcasters. Sens. Leahy and Specter want them to advocate for the position when the next meeting of the Standing Committee in June.

The WIPO Broadcast Treaty is a complex beast. Originally, the treaty was just meant to cover signal theft—cases where a broadcast is retransmitted without authorization. As treaty discussions continued, broadcasters began pushing towards a rights-based approach, one that would allow them to specifically authorize and deny the use of their signal to others. Over the months of discussions, the treaty has changed many times, but there have been some consistent areas of concern.

One of those is public domain material, which could potentially be locked up by broadcasters just by showing it. By doing so, they could gain exclusive rights over the content. At one point, the treaty contained no provision for fair use—another significant problem with the treaty. In the US, one of the biggest concerns is that the Broadcast Treaty would be unconstitutional, as IP rights in the US are restricted to creative works and not extended to broadcasters.

Last October, the WIPO dropped the rights-based approach for the time being. With Sens. Leahy and Specter expressing their concern with the treaty—saying that it "would needlessly create a new layer of rights that would disrupt United States copyright law"—it appears that the rights-based approach is truly dead.